On July 1, 1989, 17 professors at the School of
Dentistry had
their tenured appointments unilaterally and arbitrarily
reduced from
12 to 9 months per fiscal year. (The Dental School continues
to
operate on a 12 month basis.) This reduction in period of
employment
produced a privation of the professors' protected, vested
property
rights in the terms of their university apointments with tenure.
On
July 18, 1991, Prof. Yohn filed a complaint in the Michigan Court
of
Claims to recover his property rights. Having wound its way through
the
state courts without recovery or compensation for property
rights, the
case is currently being prepared for submission to the
federal courts. The
following essay examines the legal status of
academic
tenure.

PROLOGUE

One hundred and
seventy eight years ago in his oral argument
before the United States
Supreme Court, Daniel Webster raised
academic tenure issues. Although the
Court never addressed the tenure
issues, Mr. Webster prevailed on other
grounds. Webster's words ring
just as true today as they did in 1818. Mr.
Webster:

No description of private property has been
regarded as more
sacred than college livings. They are the estates and
freeholds of a
most deserving class of men; of scholars who have consented
to forego
the advantages of professional and public employment, and to
devote
themselves to science and literature, and the instruction of
youth,
in the quiet retreats of academic life. Whether, to dispossess
and
oust them out of their livings; to do this, not by the power of
their
legal visitors, or governors; and to do it without forfeiture,
and
without fault; whether all this be not in the highest degree
an
indefensible and arbitrary proceeding, is a question, of which
there
would seem to be but one side fit for a lawyer or a scholar
to
espouse. The Trustees of Dartmouth College v Woodard, 17 US
518
pp 583-84 (1819).

INTRODUCTION

Tenure
rights in higher education are not created by a
constitution. They are
created by an understanding in the academic
community. Generally, the
courts are loath to interfere in the
affairs of the academic community.
Recently, the United States Third
Circuit Court of Appeals held that
professors can go to court to
receive their due process, McDaniels v
Flick, 59 F3d 446 (3rd
Cir. 1995). This ruling means that the courts
will be called upon
more frequently to protect a professor's academic
tenure rights from
cronyism, favoritism, religious, philosophical,
political, sex, race,
age, or any other illegitimate reason(s) alleged by
governing boards
and/or their
administrations.

DEFINITIONS AND
PRINCIPLES

Courts and faculty have similar perceptions
of the definition of
"tenure":

Tenure; "Generally, tenure
is right, term, or mode of holding or
occupying, and "tenure of an office"
means the manner in which it is
held, especially with regard to time."
Winterberg v University of
Nevada System, 89 Nev 358; 513 P2d 1248,
1250. "Status afforded
to teacher or professor upon completion of trial
period, thus
protecting him or her from summary dismissal without
sufficient cause
or economic reasons. A faculty appointment for an
indefinite period
of time." University Educ. Ass'n v Regents of
University of
Minnesota, Minn; 353 NW2d 535, 540. "Tenure
denotes
relinquishment of the employer's unfettered power to terminate
the
employee's services." Zumwalt v Trustees of California
State
Colleges, 31 Cal App 3d 61 1; 607 Cal Rptr 573,579
(1973).

Tenured faculty; "Those members of a school's teaching staff
who
hold their positions for life or until retirement. They may not
be
discharged except for cause." Black's Law Dictionary, 6th edition
pp
1469-70, West (1991).

The United States First Circuit
Court of Appeals has provided a
frequently cited statement on academic
tenure. They stated that:

Tenure involves a long-term
academic and financial commitment by a
university to an individual,
providing faculty with unusually secure
positions tantamount to life
contracts. This security and the freedom
of expression it allows, arguably
help the university carry out a
basic function---the vigorous exchange of
ideas--- a function that
itself enjoys constitutional protection.
Beitzell v Jeffrey,
643 F2d 870 p 875, (1st Cir.
1981).

The United States Fifth Circuit Court of Appeals,
after reviewing
the report by the Commission on Academic Tenure in Higher
Education
and the 1940 Statement of Principles on Academic Freedom and
Tenure
formulated by the Association of American Colleges and the
American
Association of University Professors, stated:

One
common characteristic stands out: that, with academic tenure,
the
institution is making a general commitment for employment which
is
normally expected to continue, with the individual's consent,
until his
death or retirement. Hennessey v National Collegiate
Athletic
Association, 564 F2d 1 136 p 1 142, (5th Cir.
1977).

The decisions of courts in jurisdictions throughout
the United
States uniformly agree that the United States Constitution and
a
State's Constitution decree that different rules apply
in
employer-employee relationship cases in
which the Federal or a State government
is the employer. A search and
study of case law authorities shows two
branches of law protecting
professors' tenure rights in the academic
community. One branch deals
with private colleges and universities
involving the legal theory of
contracts. The second branch deals with
public colleges and
universities involving the legal theory of protected,
vested property
rights.

The United States Supreme Court has held in
the area of public
employment that a public college professor summarily
dismissed from a
college appointment held under written tenure
provisions,
Slochower v Board of Education, 350 US 551, 76 S. Ct.
637, 100
L. Ed. 692 (1956); and a college professor dismissed with de
facto
tenure, Perry v Sindermann, 408 US 593, 92 S. Ct. 2694, 33
L.
Ed. 2d 570 (1972); and college professors and staff members
dismissed
during the terms of their contracts, Wieman v Updegraff,
344
US 183, 73 S. Ct. 215, 97 L. Ed. 216 (1952); and a teacher
hired
without tenure or a formal contract, but nonetheless with a
clearly
implied promise of continued employment, Connell
v
Higginbotham, 408 US 207, 91 S. Ct. 1772, L. Ed. 418 (1971); have
a
property right to continued employment that is safeguarded by the
due
process clauses of the Fifth and Fourteenth Amendments of the
U.S.
Constitution.

In 1972, in two landmark companion cases, the U.S.
Supreme Court
set out the distinctions between non-tenured and tenured
professors:
Board of Regents of State Colleges v Roth, 408 US 564;
92 S.
Ct. 2701, 33 L. Ed. 2d 548 (1972); Perry v Sindermann, 408
US
593, 92 S. Ct. 2694, 33 L. Ed. 2d 570 (1972). While
non-tenured
professors may have an expectation of continued employment,
they have
no entitlement and are subject to discharge without the
protection of
due process clauses of the Fifth and Fourteenth Amendments
of the
U.S. Constitution. Tenured faculty members have an entitlement for
a
cognizable protected, vested property right to continued
employment
described by the terms of their university appointment when
tenure
was conferred and have a cause of action when this property right
is
invaded. The Court explained:

Property interests, of
course, are not created by the
Constitution. Rather, they are created and
their dimensions are
defined by existing rules or understandings that stem
from an
independent source such as state law --- rules or understandings
that
secure certain benefits and that support claims of entitlement
to
those benefits. Roth, supra, p 577.

[A]n explicit
tenure provision clearly is evidence of a
formal understanding that
supports a teacher's claim of entitlement
to continued employment unless
sufficient "cause" is shown.
Sindermann, supra, p
601.

[J]ust as the welfare recipients' "property"
interest in
welfare payments was created and defined by statutory terms,
so the
respondent's "property" interest in employment at Wisconsin
State
University-Oshkosh was created and defined by the terms of
his
appointment. Roth, supra, p 578.

Thus, to put
it as plainly as possible, the United States Supreme
Court considered that
a professor in public employment possesses a
vested property right to
continued employment safeguarded by due
process which can be created by an
implied promise, a contract, de
facto tenure or a written tenure provision
[a written tenure
provision means earned tenure]. Similarly, case
law progeny shows
that lower courts have followed suit.1

Hence, the
weight of legal authority has established a compelling
principle: in
public academe a tenured professor possesses a
protected, vested property
right in his/her university employment.

Applying the definitions and
principles set out by the preceding
cited authorities, a suitable legal
definition of the phrase academic
tenure in public academe
is:

Academic tenure is a reward given by an institution to
a
professor. It includes a long-term academic and financial
commitment
that guarantees the professor [except for cause]
an
entitlement: a protected, vested property right to
continued
employment. The dimensions of the vested property right
are
established and described by the terms of the university
appointment
when tenure is conferred and the professor possesses and
enjoys the
property right in his/her university appointment with tenure
until
retirement. This job security protects academic freedom and
ensures
an institution of a loyal and faithful faculty with high
morale.

SUMMARY

A university
appointment with tenure is one of the most
prestigious positions in the
employment world, Frye v Memphis
State University, 806 SW2d 170
(Tenn. 1991). Professors achieve
tenure following meritorious productivity
during a probationary
period. Tenure protects a professor from summary
dismissal except for
cause; namely: (1) serious misconduct, (2)
incompetence, (3) (bona
fide) financial exigency, or (4) discontinuance of
an institutional
program, Stern v University of Oklahoma, Board of
Regents, 841
P2d 1168 (Okl App 1992). Tenure typically involves a
continuous and
permanent academic and financial commitment by a university
to an
individual who thereby gains a life contract in private
colleges
and universities or a protected, vested property right
in
public colleges and universities.